Volume 13 — POLITICAL EQUALITY WITHOUT DISTINCTION OF COLOR. NO COMPROMISE OF HUMAN RIGHTS.

Second Speech in the Senate on the Proposed Amendment of the Constitution fixing the Basis of Representation, March 7, 1866.

This second speech was in continuation of the debate on the proposed Constitutional Amendment, and in reply to those who had spoken after Mr. Sumner, especially Mr. Fessenden. The history of the debate and its result appear in the Appendix to the speech of February 5th and 6th.[221]

MR. PRESIDENT,—I hesitate to intrude again into this debate, which now, after the interposition of another debate on another question, is again renewed. I do it with unfeigned reluctance, and I hope not to trespass too much on your patience.

The question before us, even in its simplest form, is of incalculable importance; but it has added interest, as opening the whole vast subject of Reconstruction. Into this field I shall not be tempted, except to express a brief opinion on the general principles we should seek to establish. Treason must be made odious, and to this end power should be secured to loyal fellow-citizens. In doing this, two indispensable conditions cannot be forgotten: first, all who have been untrue to the Republic must, for a certain time, constituting the transition period, be excluded from the partnership of government; and, secondly, all who have been true to the Republic must be admitted into the partnership of government, according to the sovereign rule of the Constitution, which knows no distinction of color. Following these two simple commandments, there will be safety and peace, together with power and renown; neglecting these two simple commandments, there must be peril and distraction, together with imbecility and dishonor. In the one way, Reconstruction is easy; in the other way, it is in any just sense impossible. It may seem for the moment to succeed; but it must fail in the end. This is all I have to say at present on Reconstruction, and I turn at once to the precise question before us.

Pardon me, Sir, if I remind you that there are two modes of debate. One is to attack the previous speaker with personality of criticism or manner. The other is to speak plainly on the question, and to deal directly, according to your convictions, with the principles involved. Sometimes the two modes are allowed to intermingle. If ever there was occasion when the first should be carefully avoided, when the question alone should be handled, and not the previous speaker, when attention should be directed exclusively to principles involved, and not to any subordinate point of mere form, it is now, when we are asked to insert a new provision in the Constitution, fixing the basis of political power at the expense of fellow-citizens counted by millions. In this spirit I shall try to speak. To my mind, the occasion is too solemn for personal controversy, and I shall not be drawn into it.

The proposition before you is the most important ever brought into Congress, unless, perhaps, we except the Amendment abolishing Slavery; and to my mind it is the most reprehensible. The sentiment which inspired us to hail the abolition of Slavery with gratitude, as the triumph of justice, should make us reject with indignation a device to crystallize into organic law the disfranchisement of a race. With intense regret I differ from valued friends about me, but I cannot do otherwise. I bespeak in advance their candor, and most cheerfully concede to all from whom I differ the indulgence which I claim for myself. With me there is no alternative. Seeing this proposition as I do, I must speak frankly, as on other occasions, in exposing the crime against Kansas, or the infamy of that enactment which turned the whole North into a hunting-ground where man was the game. The attempt now is on a larger scale, if not more essentially bad. Such a measure, so obnoxious to every argument of reason, justice, and feeling, so perilous to the national peace, and so injurious to the good name of the Republic, must be encountered as a public enemy. There is no language which can adequately depict its character. Thinking of it, I am reminded of words of Chatham, where he held up to undying judgment a barbarous measure of the British Ministry. The Englishman did not hesitate, nor did he tame his words, but exclaimed:—

“I am astonished, shocked, to hear such principles confessed,—to hear them avowed in this House, or in this country,—principles equally unconstitutional, inhuman, and un-christian.… I call upon your Lordships and the united powers of the State to stamp upon them an indelible stigma of the public abhorrence.”

Then, rising to still higher flight, he cried out:—

“My Lords, I am old and weak, and at present unable to say more; but my feelings and indignation were too strong to have said less. I could not have slept this night in my bed, nor reposed my head on my pillow, without giving this vent to my eternal abhorrence of such preposterous and enormous principles.”[222]

But what was the measure which thus aroused the veteran orator, compared with that before us? It was only a transient act of wrong, small in proportions. Here is an act of wrong permanent in influence, colossal in proportions, operating in an extensive region, affecting millions of citizens, positively endangering the peace of the country, and covering its name with dishonor. Such is the character of the present attempt. I exhibit it as I see it. Others may not see it so. Of course, its supporters cannot see it so. The British Ministry did not see the measure which Chatham denounced as he saw it, and as history now sees it. Senators would not support the present proposition, if they thought it disgraceful; nor would the British Ministry have supported that earlier proposition, had they thought it disgraceful. Unhappily, they did not think it so; but I trust you will be warned by their example.

With the eloquence of Chatham, another also from his place in the House of Lords held up to reprobation that apprentice system which, under the sanction of both Houses of Parliament, followed Emancipation in the British West Indies. I refer to Brougham. He did not hesitate to exclaim, “Prodigious, portentous injustice!” And then, continuing, he denounced it as “the gross, the foul, the outrageous, the monstrous, the incredible injustice of which we are daily and hourly guilty towards the whole of the ill-fated African race.”[223] But how small the injustice which aroused his reprobation, compared with that you are asked to perpetuate in Constitutional Law! The wrong he arraigned was against eight hundred thousand persons in distant islands, to whom the people of Great Britain were bound by no peculiar ties, and who were to them only fellow-men. The wrong I now arraign is against four million persons, constituting a considerable portion of the “people” of the United States, to whom we are bound by ties of gratitude, and who are to us fellow-citizens.

From the moment I heard this proposition first read at the desk I have not been able to think of it without pain. The reflection that it may find place in the National Constitution, or even that it may be sanctioned by Congress, is intolerable. And this becomes more so, when I call to mind the circumstances by which we are surrounded and the exigency of the hour.

Lord Bacon tells us that the highest function which men can be called to perform on earth is that of founders of states, or, as he expresses it, conditores imperiorum.[224] Such is our present duty. We are to help in this great work by a fundamental provision fixing the basis of our political system for an indefinite future. There are none among the great lawgivers of history who have had a sublimer task.

This duty is enhanced, when we consider that it is the consequence and sequel of an unparalleled war. At a moment of peace such a duty would be commanding; but it is now reinforced by exceptional considerations arising from the exceptional condition of affairs. For four years, Rebellion, of the greatest magnitude known to authentic history, raged among us, threatening to rend the Republic in twain. Millions of treasure were sacrificed. Lives more precious than any treasure were heaped in hecatombs. Families were filled with mourning. In the terrible struggle, while the country was bleeding at every pore and the scales of battle hung doubtful, assistance came from an unexpected quarter. Intermixed with the false men who warred on the Republic were nearly four million slaves, shut out from rights of all kinds, and compelled to do the bidding of masters. These slaves became our benefactors. They were kind to our captive soldiers, sheltering them, feeding them, supplying their wants, and guiding them to safety. Thus in the very heart of the Rebellion there was a filial throb for the Republic. At last arms were put into their hands, and two hundred thousand brave allies, representatives of an unmustered host, leaped forward in defence of the national cause. The Republic was saved. The Rebellion was at an end. Meanwhile the good President who at that time guided our affairs put forth his immortal Proclamation, declaring that these slaves “are and henceforward shall be free”; and not stopping with this declaration, he proceeded to announce that “the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.” Thus was the Republic solemnly pledged to these benefactors, first, by ties of gratitude that should be enduring, and, secondly, by an open promise in the face of the civilized world. And this pledge was taken up and adopted by the people of the United States, when, by Constitutional Amendment, they expressly empowered Congress to maintain this freedom by appropriate legislation.

And now, Sir, called to readjust the foundations of political power, which are naturally changed by the disappearance of Slavery, and called also to perform sacred promises to benefactors, in harmony with sacred promises of our fathers, while at the same time we save the name of the Republic from dishonor and see that the national peace is not imperilled, Congress is about to liquidate all these inviolable obligations by a new compromise of Human Rights, and, so far as it can, to place this compromise in the text of the Constitution, thus establishing a false foundation of political power, violating the national faith, dishonoring the name of Republic, and imperilling the national peace. Others have dwelt on the inadequacy of this attempt, even for its avowed purposes. This is plain. Conceived in a desire to do indirectly what ought to be done directly, it must naturally share the conditions of such a device.

Looking at the proposition in its most general aspect, it reminds me, if you will pardon the illustration, of that leg of mutton, served for dinner on the road from London to Oxford, which Dr. Johnson, with characteristic pungency, described “as bad as bad could be,—ill-fed, ill-killed, ill-kept, and ill-dressed.”[225] So this measure—I adopt the saying of an eminent friend, who insists that it cannot be called an “amendment,” but rather a “detriment,” to the Constitution—is as bad as bad can be; and even for its avowed purpose uncertain, loose, cracked, and rickety. Regarding it as a proposition from Congress to meet the unparalleled exigencies of the hour, it is no better than the “muscipular abortion” sent into the world by the “parturient mountain.”[226] But only when we look at the chance of good is it “muscipular.” In every other aspect it is gigantic, inasmuch as it makes the Constitution a well-spring of insupportable thraldom, and once more lifts the sluices of blood destined to run until it rises to the horse’s bridle. Adopt it, and you put millions of fellow-citizens under the ban of excommunication, you hand them over to a new anathema maranatha, you declare that they have no political rights “which the white man is bound to respect,”—thus repeating in new form the abomination that has blackened the name of Taney. Adopt it, and you stimulate anew the war of race upon race. Slavery itself was a war of race upon race, and this is only a new form of the terrible war. The proposition is as hardy as gigantic; for it takes no account of the moral sense of mankind, which is the same as if in rearing a monument we took no account of the law of gravitation. It is the paragon and master-piece of ingratitude, showing more than any other act of history what is so often charged and we so fondly deny, that republics are ungrateful. The freedmen ask for bread, and you send them a stone. With piteous voice they ask for protection; you thrust them back defenceless into the cruel den of former masters. Such an attempt, thus bad as bad can be, thus abortive for all good, thus perilous, thus pregnant with a war of race upon race, thus shocking to the moral sense, and thus treacherous to those whom we are bound to protect, cannot be otherwise than shameful.

I shall not content myself with describing the device. This is not enough. You have seen it in its general character only. You shall see it now in its guilty parts, each one of which is sufficient to arouse the conscience against it.

1. Of course you cannot fail to be struck by its language. Here words become things. In express terms there is admission of the idea of Inequality of Rights founded on race or color. That this unrepublican idea should be allowed to find place in the text of the Constitution must excite especial wonder, when it is considered how conscientiously our fathers excluded from that text the kindred idea of property in man. The saying of Mr. Madison cannot be too often repeated:—

“He thought it wrong to admit in the Constitution the idea that there could be property in men.”[227]

But is it less wrong to admit in the Constitution the idea of Inequality of Rights founded on race or color? Surely the authors of this proposition have acted inconsiderately and with little regard to the spirit of the Fathers. Imagine it introduced into the Convention which framed the Constitution. Not many words would have been used; but evidently it would have found no place in that text, which, with pious care, was to be guarded against degradation. And now mark the change. After the lapse of generations, when our obligations have increased with increasing light, at an epoch of history when mankind are more than ever before sensitive to the claims of human rights, and when among ourselves there is more than ever before a desire and a duty to fulfil all the promises of the Declaration of Independence, we are invited to make the Constitution disown the Declaration of Independence, insult the conscience of mankind, and disregard all the obligations pressing upon us. But this is a mild way of stating the character of the attempt plainly apparent in the words. Its essential uncleanness is not disclosed. Adopt this proposition, and you will imitate those ancient birds who defiled the feast that was spread. The Constitution is the feast spread for our country, and you hurry to drop into its text a political obscenity, and to diffuse over its page a disgusting ordure,—

Only by plain language can this attempt be adequately exposed. Only in this way can it be seen in its true character. Only in this way can you be moved to shrink from it with proper repugnance. In this spirit the religious press of the country is beginning to speak. The Boston “Recorder,” the most venerable of all the religious papers of New England, and perhaps of the whole country, which for more than half a century has been a weekly teacher at uncounted firesides, thus solemnly appeals to the conscience of patriots and of statesmen:—

“The proposed Amendment to the Constitution of the United States, which passed the House of Representatives last week by a vote of 120 to 46, will, if it should become the fundamental law of the land, inflict upon our free institutions greater infamy than anything contained in our written Constitution. There are things there which were sufficiently disgraceful in their intent and purpose. That the slave-trade should not be prohibited before 1808, that three fifths of the slaves should be represented in Congress by the votes of their owners, that fugitive slaves should be returned to their owners,—these were scandalous provisions to which our noble fathers submitted only because without them we could have no common national existence. But they couched these offensive propositions in terms that, on the cessation of Slavery, would have no objectionable meaning. This event they anticipated much earlier than it has actually occurred. And now that it is a fact, no one wishes the clauses of the Constitution to which we have alluded to be stricken out.

“But now it is proposed to ingraft upon this revered instrument a principle implying that a State may decree that all men are not born equal, and may disfranchise a majority of her citizens and their sons and their sons’ sons forever! Good jurists have declared that the Constitution, as it now stands, would forbid any such State action, and that all constitutions and laws disfranchising citizens because of their parentage, color, race, or descent, are null and void.… We are not aware of any attempt to refute this view with a shadow of success.

“And now it cannot be that we shall give up our vantage-ground, and stain the triumph bought with so much precious blood with a concession which might be turned to so base a use.

“Let every patriot, to whom the good name of America is dear, bestir himself. Let every Christian who believes that God is no respecter of persons, let every father who would not leave to his children a legacy of national discord and a birthright in a nation yet to bleed in Helot conspiracies, let every statesman who believes that even justice is the only sure foundation of national tranquillity, arouse himself.”[229]

I have heard somewhere a strange apology for this amendment. It is said that it is “punitive,” and that the idea of Inequality of Rights is to be admitted into the Constitution for punishment, and not for sanction. As well say that the term “three fifths of all other persons” in the Constitution was “punitive.” It was no such thing. It was a compromise; and such is the precise character of the present attempt, which, by its very words, is a plain license to tyranny, in consideration that the tyrants pay in political power. The primary element, standing out in “darkness visible,” is the license; the secondary element is the pay. Here is nothing less than a mighty house that shall be nameless, which it is proposed to license constitutionally for a consideration. Even if political power is curtailed, it is only as a consideration for the license. It is a new sale of “indulgences,” on a larger scale than that of Tetzel. The latter, returning from Rome into Germany, became vendor of licenses for adultery, robbery, theft; but the outrage aroused Martin Luther, and the Reformation began. As well say, that, since pay was required, therefore the indulgences of Tetzel were “punitive.”

Thus far I have spoken of the attempt only as it appears in its words, without analyzing it in detail.

2. One of its elementary parts and consequences is that it sanctions the acknowledged tyranny of taxation without representation. A whole race, constituting a considerable part of the people of the United States, and embraced under the words of the preamble to the Constitution, “We the people,” are left without representation in the Government, but nevertheless held within the grasp of taxation, direct and indirect, tariff and excise, State and National. Sir, this is tyranny,—or else our fathers were wrong, when they protested against a kindred injustice. The principle is fundamental. You cannot violate it without again dishonoring the Fathers.

To the application of this principle there have been two replies: first, that in its origin it was a claim of representation for communities only, and not for individuals; and, secondly, that in its nature it embraces women as well as men. And from these two considerations it is argued that it cannot be invoked for the protection of four million people whose only offence is a dark skin. Even if it had been originally a claim for communities only, and not for individuals, it is difficult to see how it can be rejected as a rule in determining the rights of fellow-citizens counted by millions. Our fathers, when they cried out that taxation without representation is tyranny, were not more than two millions and a half. Our fellow-citizens now renewing the same cry are more than four millions, possessing the weight of numbers, if not of organization. But it is a mistake to suppose that the original claim was for communities only, and not for individuals. This is a question of history, to be considered with the gravity of history, and as such I ask attention to it.

In opening this debate, I carried you to that Provincial Court in Massachusetts, where, in assailing Writs of Assistance, James Otis first launched the thunderbolt, “Taxation without representation is tyranny.” You remember how careful he was to insist that without representation there could be no taxation of any kind, direct or indirect, on land or on trade, and that the representation must be substantial, real, and not merely imaginary, or, as it was expressed at that time, “virtual.” In developing this principle, he announced the equal rights of all, without distinction of color. On this ground he stood, when he uttered those memorable words, which the whole country adopted at once with patriotic frenzy, and which I insist you shall not deny in our organic law.

But, to show more precisely the meaning of Otis, I let him be his own interpreter. Again and again he asserts the equality of men. This was his fundamental principle, which on an important occasion he thus expressed: “The first simple principle is equality and the power of the whole.”[230] Nor did he allow this to be limited in application by any distinction of color. John Adams, who was present when the orator first raised his great cry, says: “Nor were the poor negroes forgotten. Not a Quaker in Philadelphia, or Mr. Jefferson, of Virginia, ever asserted the rights of negroes in stronger terms.”[231] Otis, in another form, assailed directly the distinction of color, saying: “Will short, curled hair, like wool, instead of Christian hair, as ’tis called by those whose hearts are as hard as the nether millstone, help the argument?”[232] Such, then, were his premises,—the equal rights of all, without distinction of color. From these his conclusion was easy:—

“The very act of taxing, exercised over those who are not represented, appears to me to be depriving them of one of their most essential rights as freemen, and, if continued, seems to be, in effect, an entire disfranchisement of every civil right. For what one civil right is worth a rush, after a man’s property is subject to be taken from him at pleasure, without his consent? If a man is not his own assessor, in person or by deputy, his liberty is gone, or lays entirely at the mercy of others.”[233]

Stronger words for universal suffrage could not be employed. His argument is, that, if men are taxed without being represented, they are deprived of essential rights, and the continuance of this deprivation despoils them of every civil right,—thus making the latter depend upon the right of suffrage, which by curious neologism is known as political instead of civil. Then, giving point to his argument, the patriot insists, that, in determining taxation, “a man must be his own assessor, in person or by deputy,” without which his liberty is entirely at the mercy of others. Here, again, in different form, is the original thunderbolt; and the claim is made not merely for communities, but for “a man.”

Such a principle naturally encountered opposition at that time, even as now in this Chamber; but Otis was ready at all points. To the argument, that Manchester, Birmingham, and Sheffield, like America, returned no members to Parliament, he flashed forth in reply:—

“If they are not represented, they ought to be. Every man of a sound mind should have his vote.”

And then again, taking up the reply, he exclaimed:—

“Lord Coke declares that it is against Magna Charta, and against the franchises of the land, for freemen to be taxed but by their own consent.”[234]

Thus does he interpret again the flaming words, “Taxation without representation is tyranny.”

But, while thus positive, there is reason to believe that Otis so far yielded to prevailing sentiment, and especially to the opinions of Harrington, whose “Oceana” was much read at that time, as sometimes to recognize property in determining the basis of political power. On one occasion he said that Government could not be “rightfully founded on property alone,” thus seeming to intimate that property might enter into the foundation, although, as he derisively remarks, “the possessor of it may not have much more wit than a mole or a musquash.”[235] But it was doubtless obvious to his clear intelligence that a claim of power founded on property was very different from a claim of power founded on color. Property may be acquired; but color, from its nature, is an insurmountable condition. The original Constitution of Massachusetts recognized property as an element of political power; but it rejected all discrimination founded on color. If, therefore, under the maxim of Otis, there may be discrimination founded on property, most clearly, according to reason and early practice, there can be none founded on color; so that at the present hour his maxim is of vital force as a claim, not merely for the community, but for the individual. Let the country now, as aforetime, take it up and repeat it until it becomes the watchword of patriotism.

But Otis was not the only interpreter of this maxim of Liberty. The Legislature of Massachusetts, on repeated occasions, made the same claim. In solemn resolutions, drawn by Samuel Adams, and adopted unanimously, it declared, in substance, that, “by the Law of Nature, no man has a right to impose laws more than to levy taxes upon another”; that “the freeman pays no tax, as the freeman submits to no law, but such as emanates from the body in which he is represented.”[236] Surely this claim is not merely for the community, but for the individual freeman also.

Virginia was not behind Massachusetts. In her Declaration of Rights, drawn by that determined patriot, George Mason, and adopted June 12, 1776, anterior to the Declaration of Independence, is the following emphatic claim:—

“All men having sufficient evidence of permanent common interest with and attachment to the community have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not in like manner assented for the public good.”[237]

Here again the claim is not merely for the community, but for “all men,” and it is set forth thus positively in a Declaration of Rights.

And now listen to Benjamin Franklin. I quote a statement found among his papers, and placed by his excellent editor under date of 1768-9, while the Colonists were echoing the cry, “Taxation without representation is tyranny.”

“That every man of the commonalty, excepting infants, insane persons, and criminals, is of common right, and by the laws of God, a freeman, and entitled to the free enjoyment of liberty.

“That liberty or freedom, consists in having an actual share in the appointment of those who frame the laws, and who are to be the guardians of every man’s life, property, and peace; for the all of one man is as dear to him as the all of another, and the poor man has an equal right, but more need, to have representatives in the Legislature than the rich one.

“That they who have no voice nor vote in the electing of representatives do not enjoy liberty, but are absolutely enslaved to those who have votes and to their representatives; for to be enslaved is to have governors whom other men have set over us, and be subject to laws made by the representatives of others, without having had representatives of our own to give consent in our behalf.”[238]

Here is no claim for communities merely, but expressly for “every man,” including especially “the poor man,” and without distinction of color.

This American testimony is fitly crowned by the Declaration of Independence, which, beginning with the proclamation that “all men are created equal,” proceeds to assert that governments “derive their just powers from the consent of the governed.” Here again is no claim for communities, but for “all men”; and this is the most authoritative interpretation of the original claim thundered forth by Otis, and echoed throughout the land. It is idle to show that in certain instances the Fathers failed to apply the sublime principles they declared. Their failure can be no apology for us, on whom the duty is now cast.

But there is still another interpreter. The maxim of Otis was not original with him. It is found in the writings of John Locke, so remarkable for masculine sense and an exalted love of liberty. On a former occasion I adduced his authority, which is plain and positive. Pardon me, if I call attention to it once more. After asserting that Government cannot take the property of any one without his own consent, being the consent of the majority, the philosopher thus expresses himself:—

“For, if any one shall claim a power to lay and levy taxes on the people by his own authority and without such consent of the people, he thereby invades the fundamental law of property and subverts the end of government; for what property have I in that which another may by right take, when he pleases, to himself?”[239]

Mr. Hallam, commenting on this text, does not hesitate to say, that it “in some measure seems to charge with usurpation all the established governments of Europe,”—that “neither the Revolution of 1688 nor the administration of William the Third could have borne the test by which Locke has tried the legitimacy of government.”[240]

A later English writer, Mr. Tremenheere, commenting also on this text, sets forth its two propositions as follows: “First, that a political society can only be bound by the act of the majority; second, that taxation without representation is tyranny.”[241] Such are the two propositions this English writer finds in Locke, and which he cites for condemnation. Thus, if we repair with Otis to the very source from which he drew, we find that there was no claim for communities merely, but for the individual man, without distinction of color.

Mr. Bright, our English friend, in one of his admirable speeches,[242] has recently furnished an additional illustration. He has brought to light a resolution from no less an authority than Lord Somers, on an important occasion, kindred to the present, when it was proposed to disfranchise all who were not of the Established Church, as it is now proposed to disfranchise all who are not of a certain color. Speaking for the House of Lords, in conference with the Commons, this great constitutional lawyer insisted:—

“That though the Lords allow that no man hath a place by birthright, or but few such examples in our Government, yet that giving a vote for a Representative in Parliament is the essential privilege whereby every Englishman preserves his property, and that whatsoever deprives him of such vote deprives him of his birthright.”[243]

Here again is the very cry of Otis; and you cannot fail to observe that the claim is not for communities merely, but for “every Englishman,” without distinction of color.

Surely this is enough. But it is said that the claim is as applicable to women as to men, especially where women are tax-payers. To this I reply, that Locke, Somers, Otis, and Franklin, in making the claim, did not give it any such extent, and the question which I submit is simply as to their meaning in the words “Taxation without representation is tyranny.” Clearly their claim was for men, believing, as they did, that women were represented through men; and it is hardly candid to embarrass the present debate, involving the rights of an oppressed race, by another question entirely independent. In saying that the claim was for men, I content myself with the authority of Theophilus Parsons, afterward the eminent Chief Justice of Massachusetts, who, in a masterly state-paper, known as the “Essex Result,” which was the prelude to the Constitution of Massachusetts, thus discloses the opinion of the Fathers on this precise point:—

“Every freeman, who hath sufficient discretion, should have a voice in the election of his legislators.… All the members of the State are qualified to make the election, unless they have not sufficient discretion, or are so situated as to have no wills of their own. Persons not twenty-one years old are deemed of the former class, from their want of years and experience.… Women, what age soever they are of, are also considered as not having a sufficient acquired discretion,—not from a deficiency in their mental powers, but from the natural tenderness and delicacy of their minds, their retired mode of life, and various domestic duties. These, concurring, prevent that promiscuous intercourse with the world which is necessary to qualify them for electors. Slaves are of the latter class, and have no wills.”[244]

The reasons assigned for the exclusion of women may be very unsatisfactory; but they show at least that the Fathers, when insisting that taxation and representation must go together, did not regard women, any more than minors, within the sphere of this commanding principle. And here I leave this head of the argument, concluding as I began, that you cannot adopt this pretended Amendment without setting at defiance the great maxim of constitutional liberty which was the rallying cry of our fathers.

3. Continuing the dissection, I exhibit this proposition as a new form of concession to State Rights. Such it is plainly on its face; such it is in reality; and the more you examine it, the more complete the concession appears. Already it has been announced as such by those who seek to commend it in quarters of doubtful loyalty. Here, for instance, is a speech of Hon. John E. King, claimant of a seat in Congress from Louisiana, only a few days ago addressed to the Legislature of his State, where, after calling attention to the present attempt, he exults in what seemed to him the prospect of its adoption:—

“The present Congress is proceeding to amend without the eleven States that are unrepresented in that body. However, there is some good in all this evil. If this Amendment should pass,—and the speaker said that himself and colleagues had no doubt that it would,—it will settle forever the right of the States to legislate, each for itself, as to who shall be the voters therein.”[245]

Thus, while deprecating Amendments to the Constitution in the absence of the eleven Rebel States, the partisan of State Rights is reconciled to the pending proposition, inasmuch as it is a triumph of this sectional pretension. Alas, that now, at the close of a rebellion in the name of State Rights, we should be considering calmly how to assure this pernicious heresy new support in the Constitution itself!

Let me be understood. I suggest no interference with the just rights of the States. These belong to the harmonies of the Union. But, in the name of Justice, I insist that nothing further shall be done to invest the States with peculiar local power. If not taught by the lessons of the late war, then be taught by the principles avowed at the very beginning of the Government.

The object of the Constitution was to ordain, under authority of the people, a national government possessing unity and power. The Confederation had been merely an agreement “between the States,” styled “a league of firm friendship.” Found to be feeble and inoperative, through the pretension of State Rights, it gave way to the Constitution, which, instead of a “league,” created a “Union” in the name of the people of the United States. Beginning with these inspiring and enacting words, “We, the people,” it was popular and national. Here was no concession to State Rights, but a recognition of the power of the people, from whom the Constitution proceeded. The States are acknowledged; but they are all treated as component parts of the Union in which they are absorbed under the National Constitution, which is the supreme law. There is but one sovereignty, and that is the sovereignty of the people of the United States.

On this very account the adoption of the Constitution was opposed by Patrick Henry and George Mason. The first pronounced: “That this is a consolidated government is demonstrably clear.” “The question turns on that poor little thing, the expression, ‘We, the people,’ instead of ‘the States’ of America.”[246] The second exclaimed: “Whether the Constitution be good or bad, the present clause [‘We, the people’] clearly discovers that it is a national government, and no longer a confederation.”[247] But against this powerful opposition the Constitution was adopted in the name of the people of the United States. Throughout the discussion, State Rights were treated with little favor. Madison said, the States were “only political societies,” and “never possessed the essential rights of sovereignty.”[248] Gerry said, the States had “only corporate rights.”[249] Wilson, the philanthropic member from Pennsylvania, afterward a learned judge of the Supreme Court of the United States, and author of the “Lectures on Law,” said: “Will a regard to State Rights justify the sacrifice of the Rights of Men? If we proceed on any other foundation than the last, our building will neither be solid nor lasting.”[250] Such were the voices at that heroic day. And now, at the end of an unparalleled war to abase State Rights, we are asked to naturalize in the Constitution a new provision confirming to the States an odious pretension, shocking to the moral sense. But its character belongs to another head.

4. Proceeding with the dissection, I now exhibit the proposition, not only as a concession to State Rights, which is admitted by a Louisiana supporter, but, if unhappily adopted, as the constitutional recognition of an Oligarchy, Aristocracy, Caste, and Monopoly founded on color. All this appears on the face; and as you examine it, the intolerable consequence becomes still more apparent. Thus far we have been saved from such shame. The proposition before us assumes that the elective franchise may be denied or abridged constitutionally on account of race or color, and thus sanctions the usurpation,—thereby investing those who deny or abridge it with exclusive political control, without regard to number, though they may be a minority or even a small fraction of the people. What, Sir, is this rancid pretension, if it be not an oligarchy, aristocracy, caste, and monopoly founded on color, under sanction of the Constitution? It is all these together, having beyond question the distinctive features of each and the distinctive discredit of each,—therefore odious in government, odious in religion, odious in economy, and altogether constituting an outrageous indecency.

It is idle to say that this is done already in the States. It may be done in fact. But now you propose to give this criminal fact the support of the Constitution, and lift it into perpetual vigor.

The country has been harassed and degraded for generations by the Slave Power, which was nothing but an oligarchy, aristocracy, caste, and monopoly; and now, when this power has been overcome in battle, it is proposed to inaugurate it anew, with slight change of name, but with the same field of action, and the same malignant spirit to wield its energies. By your concession it tyrannized before, and now by your concession it will tyrannize again. The citizens it once trampled on as slaves it will continue to trample on as outcasts, and it will set up your permission emblazoned in the Constitution itself.

5. Proceeding with this proposition, I exhibit it as petrifying in the Constitution the wretched pretension of a white man’s government. At this moment, when we are striking the word “white” from the national statutes, when this word has disappeared even from Post-Office laws, when, by a vote of the House of Representatives, it has been condemned in the laws regulating the elective franchise in the District of Columbia, it is proposed to insert an equivalent in the Constitution itself. To exhibit this shame is surely enough to make you turn away from it. Do not say that this is not proposed. What is the concession that the elective franchise may be denied or abridged “on account of race or color” but an insertion of the word “white” in the National Constitution? In that text, as it still stands, from beginning to end, from the preamble to the signature of George Washington, or the last word of the last Amendment, there is no recognition of “color.” For the sake of decency, keep it so.

6. Proceeding still further with the proposition, I exhibit it as assuming, what is false in Constitutional Law, that color can be a qualification for an elector. The Constitution says that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” Of course this leaves open the question, What is meant by “qualifications”? But this word must be interpreted in the light of the Constitution, which knows no “color,” and again in the light of the Declaration of Independence, which knows no “color,” and yet again in the light of common sense, which refuses to recognize “color” as a “qualification,” in any just sense of the term. Consult the dictionaries of the day, and you will find it means “fitness,” “ability,” “accomplishment,” “the state of being qualified”; but it does not mean “color.” It is applicable to the conditions of age, residence, character, education, property, and the payment of taxes; but it cannot be applicable to “color.” The English dictionaries most in vogue at the time of our fathers were those of Bailey and Johnson. According to Bailey, who was the earliest, “qualification” is defined:—

“(1.) That which fits any person or thing for any particular purpose.”

“(2.) A particular faculty or endowment, an accomplishment.”

According to Johnson, who is the highest authority, it is defined:—

“(1.) That which makes any person or thing fit for anything.”

“Example.—It is in the power of the prince to make piety and virtue become the fashion, if he would make them necessary qualifications for preferment.—Swift.”

“(2.) Accomplishment.”

“Example.—Good qualifications of mind enable a magistrate to perform his duty, and tend to create a public esteem of him.—Atterbury.”

According to these definitions “qualification” means “fitness” or “accomplishment,” and according to examples from classical writers it means qualities like “piety” and “virtue,” or like “mind.” Obviously it cannot embrace color, which is a physical condition, insurmountable in nature. An insurmountable condition is not a qualification, but a disfranchisement. As well say that the quality of the hair or the length of the foot should be a “qualification,” as the color of the skin. The whole pretension is one of the false glosses fastened upon the National Constitution by Slavery, which must now be sloughed off.

7. Again, I exhibit the proposition as positively tying the hands of Congress in its interpretation of a republican government, so that, under the guaranty clause, it must recognize an oligarchy, aristocracy, caste, and monopoly founded on color, with the tyranny of taxation without representation, as republican in character, which I insist they are not. At present the hands of Congress are not tied. Congress is free to act generously, nobly, truly, according to the highest idea of a republic, discountenancing all inequality of rights and the tyranny of taxation without representation. Let this pretension find place in the Constitution, and the guaranty clause will be restricted in operation. The two clauses taken together, as they must be, will read substantially: “The United States shall guaranty to every State in this Union a republican form of government: it being understood that the denial or abridgment of the elective franchise on account of race or color, and the tyranny of taxation without representation, are not inconsistent with a republican government.” In other words the denial or abridgment of the elective franchise on account of race or color, and the tyranny of taxation without representation, will be recognized in the Constitution as republican in character. Of course all attempt to enforce this guaranty against an oligarchy, aristocracy, caste, and monopoly founded on color, or against the tyranny of taxation without representation, will be from this time impossible. The precious power now existing will be lost forever.

8. Again, I exhibit the proposition as positively tying the hands of Congress in completing and consummating the abolition of Slavery. By the second clause of the recent Constitutional Amendment Congress is expressly empowered to “enforce” the abolition of Slavery by “appropriate legislation.” Accordingly, the Senate, by what is known as the Civil Rights Bill, has already undertaken to establish equality of civil rights in all the States and Territories, so that hereafter, in our courts at least, there shall be no discrimination of color. It was justly insisted that such “legislation” is needed to “enforce” the abolition of Slavery, and on this account is constitutional. The Senate acted accordingly. The bill has passed this body by more than a two-thirds vote. Obviously by the same title equality in political rights can be established also under this Amendment, if such equality shall be deemed important to “enforce” the abolition of Slavery, or, in other words, to complete and consummate the good work. In the exercise of a granted power Congress is sole judge of the “means” it employs; and this conclusion is sustained not only by reason, but by the Supreme Court of the United States in solemn judgments. You will remember the familiar precedents, which I insist are decisive. And now, in the face of these judgments, in the face of reason, and with the authoritative precedent of the Senate establishing equality of civil rights before us, it is proposed to insert in the Constitution a provision despoiling Congress of its power under the Constitutional Amendment, so that hereafter that Amendment, which should be interpreted generously and to advance Liberty, will be changed so as to read: “Congress shall have power to enforce this article by appropriate legislation: it being understood that it shall not interfere for this purpose with any denial or abridgment of the elective franchise in any State on account of race or color.” Thus again will a beneficent power be lost at a moment when all is needed for the safety and renown of the Republic.

9. Again, I exhibit this proposition as installing recent rebels to govern loyal citizens under sanction of the Constitution. The ruling class began and sustained the Rebellion. The citizens you disfranchise were loyal, and some of them poured out their red blood for the Republic; and yet we are asked to intrench this ruling class in the Constitution, so that they can wield unchecked power, while loyal millions are humbled at their feet. The bare statement offends reason and conscience.

Pray, who may justly look to the Republic for protection? Is it the rebel or the loyal? Is it the citizen who has caused all your woes, and now gnashes his teeth at your triumph,—or is it the citizen who has watched your flag with sympathetic pride, and now rejoices in your triumph? Who can hesitate? And yet the proposition before the Senate gives the palm of power and honor to the rebel class, and fixes this preëminence in the National Constitution. You cannot say, more than Cain, “Am I my brother’s keeper?” You are your brother’s keeper; and you must see that he is saved from cruel oppression.

10. And, lastly, I denounce this proposition as a compromise of human rights, the most questionable of any in our history. Persons out of the Senate have sought to vindicate it, as other compromises in times past, by representing it as something which it is not. This is done by exhibiting one side only of the compromise, and thus calling it “punitive”; as if in 1850 the admission of California, which was one side of the compromise, had been exhibited, while the unutterable atrocity of the Fugitive Slave Bill, which was the other side, had been concealed from view. The present compromise, like other compromises, has two sides; in other words, it is a concession for a consideration. On one side it is conceded that the States may, under the Constitution, exclude citizens counted by the million from the body politic, and practise the tyranny of taxation without representation, provided, on the other side, there is a corresponding diminution of representative power in the lower House of Congress, without, however, touching the representative power in the Senate. The glaring feature of this compromise is the criminal concession, constituting the sacrifice of brave defenders, and even of a whole race, to whom we owe protection. The consideration is small. It will be forgotten, when the monstrous concession looms in history as a landmark of dishonor.

There have been other compromises of human rights in times past. But, considering the grandeur of the occasion, the promises of the Fathers, the extent of present obligations, the promptings of gratitude, the demands of public faith, the exigencies of public security, and the good name of the Republic, all now involved, I am sure that no compromise so discreditable and disastrous was ever before proposed. A feeble prototype may be found in that intolerable treaty known as the Assiento, from which every Englishman turns with a blush, where, at the end of an unprecedented war, England bartered all that had been won by the victories of Marlborough for the privilege of supplying slaves to the Spanish colonies. The slave-trade received solemn sanction, and England pocketed the dishonest profits,—just as now a kindred offence on a grander scale is to receive solemn sanction, and we who sanction it are to pocket the profits in political power. Do not talk, Sir, of this measure as “punitive,” unless you mean that it is punitive of benefactors,—for this is the only character it can bear in history. On a former occasion I entreated you not to copy the example of Pontius Pilate, who handed over the Saviour of the world, in whom he found no fault at all, to be scourged and crucified. It is my duty now to remind you that you go further than Pontius Pilate. He was a mocker and a jester;[251] but he received nothing for what he did. You do. Not content with resolving the Senate into a Prætorium, I feel rather that you imitate Judas, who betrayed the Saviour for thirty pieces of silver, and imitate the soldiers who appropriated to themselves the raiment of the Saviour. Do not answer me with a sneer. Has not the Saviour himself told us that what we do to the least we do to Him? Ay, Sir, in offering fellow-citizens to be sacrificed, in betraying them for less than “thirty” Representatives in Congress, and in appropriating their political raiment, you do all this to the Saviour himself. Pardon this necessary plainness. I speak for my country, which I seek to save from dishonor; I speak for fellow-citizens whom I would save from outrage; and I speak for that public faith and public security in which is bound up the welfare of all.

Mr. President, such is the argument for the rejection of this pretended Amendment. Following it from the beginning, you have seen, first, how it carries into the Constitution the idea of Inequality of Rights, thus defiling that unspotted text; secondly, how it is an express sanction of the acknowledged tyranny of taxation without representation; thirdly, how it is a concession to State Rights at a moment when we are recovering from a terrible war waged against us in the name of State Rights; fourthly, how it is the constitutional recognition of an oligarchy, aristocracy, caste, and monopoly founded on color; fifthly, how it petrifies in the Constitution the wretched pretension of a white man’s government; sixthly, how it assumes, what is false in Constitutional Law, that color can be a “qualification” for an elector; seventhly, how it positively ties the hands of Congress in fixing the meaning of a republican government, so that under the guaranty clause it will be constrained to recognize an oligarchy, aristocracy, caste, and monopoly founded on color, together with the tyranny of taxation without representation, as not inconsistent with such a government; eighthly, how it positively ties the hands of Congress in completing and consummating the abolition of Slavery according to the second clause of the Constitutional Amendment, so that it cannot for this purpose interfere with the denial of the elective franchise on account of color; ninthly, how it installs recent rebels in permanent power over loyal citizens; and, tenthly, how it shows forth its unmistakable character as a compromise of human rights, the most questionable of any in our history.

And now the question occurs, What shall be done? To this I answer, Reject at once the pretended Amendment; show it no favor; give it no quarter. Let the country see that you are impatient of its presence. But there are other propositions, in the form of substitutes. For any one of these I can vote. They may differ in efficiency, but there is nothing in them immoral or shameful. There is, first, the proposition to found representation on voters instead of population, and, secondly, the proposition to secure equality in political rights by Constitutional Amendment or by Act of Congress.

The proposition to found representation on voters instead of population was originally introduced by me during the last Congress. Almost at the same time I presented a series of resolutions declaring not only the power, but the duty, of the United States to guaranty republican governments in the Rebel States on the basis of the Declaration of Independence, so that the new governments should be founded on the consent of the governed and the equality of all persons before the law. Thus, while proposing to found representation on voters, I at the same time asserted the power of Congress under the Constitution to secure equality in political rights. The proposition with regard to voters was much discussed during the recess of Congress. At the beginning of the present session it seemed to find favor. But at last statistics were adduced tending to show that it would transfer power from Eastern States to Western States in proportion to the excess of females over males in the former; and this abnormal circumstance was made an argument against it. Since then it has given place to the offensive attempt now pending.

The proposition to found representation on voters instead of population may be seen, first, in what it does not, and, secondly, in what it does.

Seeing it in what it does not, all will confess that it does not carry into the Constitution itself the idea of Inequality of Rights, thus defiling that unspotted text; that it gives no sanction to the acknowledged tyranny of taxation without representation; that it makes no concession to State Rights, at a moment when we are recovering from a terrible war waged against us in the name of State Rights; that it does not recognize an oligarchy, aristocracy, caste, and monopoly founded on color; that it does not petrify in the Constitution the wretched pretension of a white man’s government; that it does not assume, what is false in Constitutional Law, that color can be a “qualification” for a voter; that it does not positively tie the hands of Congress in fixing the meaning of a republican government, so that under the guaranty clause it will be constrained to recognize an oligarchy, aristocracy, caste, and monopoly founded on color, together with the tyranny of taxation without representation, as not inconsistent with such a government; that it does not positively tie the hands of Congress in completing and consummating the abolition of Slavery according to the second clause of the Constitutional Amendment; that it does not install recent rebels in permanent power over loyal citizens; that it does not show forth in unmistakable character as a compromise of human rights, the most questionable of any in our history. All these things, so offensive to the conscience and the reason, this proposition avoids. In all these respects it is at least blameless.

On the other hand, without inflicting any stigma upon the Constitution or upon the Republic, without abandoning any principle, without making any concession to the States, without tying the hands of Congress, and without any compromise of human rights, it does rearrange the basis of representation so as to accomplish all that is proposed even by the most sanguine supporters of the other attempt, and it does this effectually, without the opportunity for evasion afforded by the other proposition. The alleged inequality in operation, owing to excess of females over males in certain States, may make you hesitate; but better take representation founded on voters, even with any such alleged inequality, than do a grievous wrong. Better wrong yourselves than wrong others.

Let me confess that I was tempted to this proposition by the conviction that I was carrying out the cherished idea of Massachusetts embodied in her own Constitution. According to a recent Amendment, the representation in both branches of the Legislature is founded on “legal voters,” and not on population. Here are the words.

“A census of the legal voters of each city and town on the first day of May shall be taken and returned into the office of the Secretary of the Commonwealth.… The enumeration aforesaid shall determine the apportionment of Representatives for the periods between the taking of the census.

“The House of Representatives shall consist of two hundred and forty members, which shall be apportioned by the Legislature, at its first session after the return of each enumeration as aforesaid, to the several counties of the Commonwealth, equally, as nearly as may be, according to their relative numbers of legal voters, as ascertained by the next preceding special enumeration.…

“The Senate shall consist of forty members. The General Court shall, at its first session after each next preceding special enumeration, divide the Commonwealth into forty districts of adjacent territory, each district to contain, as nearly as may be, an equal number of legal voters, according to the enumeration aforesaid.… Each district shall elect one Senator.”[252]

Obviously, in adopting this rule, Massachusetts has followed what seems a correct principle. Representative government is an invention of modern times. It was unknown in antiquity. Athens was a democracy where the people met in public assembly for the government of the state: there was no representative body chosen by the people for this purpose. The public assembly was practicable in that age, as the state was small, and the assembly seldom exceeded six thousand citizens,—a large town meeting, or mass meeting, which Milton has termed “that fierce democratie.” But where the territory was extensive and the population scattered and numerous, there could be no assembly of the whole body of citizens. To meet this precise difficulty the representative system was devised. By a machinery so obvious that we are astonished it was not employed in the ancient commonwealths, the people, though scattered and numerous, are gathered, through their chosen representatives, into a small and deliberative assembly, where, without tumult or rashness, they may consider and determine all questions which concern them. In every representative body properly constituted the people are practically present.

If, then, the representative body is a substitute for the people themselves meeting in primary assemblies, it would seem that it must be founded upon the people who compose the primary assemblies,—in other words, upon legal voters. Ordinarily there may be little difference between the proportion of legal voters and the proportion of population; but, strictly, the representative system is the agent of legal voters, and therefore the logic of the case is better satisfied, if it be founded on legal voters rather than on population. With me this is no new idea. On another occasion, in my own State, I asserted it. This was in a Convention for revising the Constitution of Massachusetts, as long ago as 1853. Pardon me, if I read a brief passage from a speech in that Convention, not from any importance which I attach to it, but as showing how completely at that time this rule seemed to me just.

“A practical question arises here, whether this rule should be applied to the whole body of population, including women, children, and unnaturalized foreigners, or to those only who exercise the electoral franchise,—in other words, to voters. It is probable that the rule would produce nearly similar results in both cases, as voters, except in few places, would bear a uniform proportion to the whole population. But it is easy to determine what the principle of the Representative system requires. Since its object is to provide a practical substitute for meetings of the people, it should be founded, in just proportion, on the numbers of those who, according to our Constitution, can take part in those meetings,—that is, upon the qualified voters. The representative body should be a miniature or abridgment of the electoral body,—in other words, of those allowed to participate in public affairs.”[253]

In this view I found myself supported by two illustrious names in our history. Mr. Jefferson, shortly after the victory at Yorktown had rescued Virginia from invasion and secured national independence, prepared the draught of a Constitution for his native State, which expressly provided that “the number of delegates which each county may send shall be in proportion to the number of its qualified electors, and the whole number of delegates for the State shall be proportioned to the whole number of qualified electors in it.”[254] This proposition, which is substantially the Rule of Three applied to voters, was not adopted, but it remains a record of opinion. Some time afterward, in the debates in the Convention which framed the National Constitution, Mr. Madison gave his authority to the same conclusion.

“It had been very properly observed that representation was an expedient by which the meeting of the people themselves was rendered unnecessary, and that the representatives ought, therefore, to bear a proportion to the voters which their constituents, if convened, would respectively have.”[255]

Thus representation founded on voters seems commended by authority and principle. Its adoption would at least give symmetry to our national system, and make the representative more precisely the embodied presence of his constituents, while at the same time it would tend to enlarge the suffrage, and to harmonize sectional pretensions with the national will, when exerted for human rights. If representation were founded on voters, the States would care little, if Congress should annul all inequality in the elective franchise on account of color. The way would be open to Congress.

There are other propositions to my mind more satisfactory, because they reach the special necessity of the hour, and provide the only effectual remedy. Speaking in the name of national justice and for the national safety, they cannot be put aside with indifference; nor is it wise to say that any measure of justice is not practical. I refer, of course, to the propositions, in different forms, to secure that great guaranty, equality in political rights, by Constitutional Amendment, or by Act of Congress, or by both.

A Constitutional Amendment placing equality of political rights under the safeguard of a specific text may be superfluous, but it is not unconstitutional or immoral. It will be supplementary to provisions already in the Constitution, and in the nature of a declaratory statute removing all doubts and cavils. It will be like an additional force in mechanics, or like a reinforcement in the field. It will be reduplication in a new form. On such an occasion, where such a cause is in issue, I welcome every alliance; and such I regard the proposition of the Senator from Missouri [Mr. Henderson].

The other proposition, looking to the direct action of Congress under the National Constitution and existing Amendments, is obviously the simplest and most practical, inasmuch as it deals with the exigency promptly, frankly, and according to the necessities of the hour. It does not undertake to act by indirection; nor does it postpone to an indefinite future what cannot be postponed without detriment to the Republic. Refusing to procrastinate, it saves all. Such a proposition is commended by every argument of reason, humanity, and patriotism. To say that it is not constitutional is to say that the Constitution itself is not constitutional; for it is derived from the very heart of the Constitution, and is filled with all its best life-blood.

Something has been said of the form in which the proposition is presented. There is the bill of the Senator from Illinois [Mr. Yates], which he has maintained in a speech of singular originality and power, that has not been answered, and I do not hesitate to say cannot be answered. By this bill it is provided that all citizens in any State or Territory shall be protected in the full and equal enjoyment and exercise of civil and political rights, including the right of suffrage. This is founded on the consideration that by the abolition of Slavery the slave became at once a citizen, subject only to such disabilities as are common to other citizens, and that by the second clause of the Constitutional Amendment Congress is empowered to enforce the abolition of Slavery by appropriate legislation. On this foundation the Senator places his bill, assuming, that, to complete the abolition of Slavery, all restrictions, penalties, or deprivations of right, resulting from Slavery in any State or Territory, must be made to cease. The proposition that I have had the honor of presenting is a joint resolution, which, after declaring the duty of Congress to guaranty a republican form of government in States where the governments have lapsed, and also the duty to complete the abolition of Slavery by the removal of all relics of this wrong, proceeds to provide that there shall be no oligarchy, aristocracy, caste, or monopoly, nor any denial of rights, civil or political, on account of race or color, but all persons shall be equal before the law, whether in the court-room or at the ballot-box.[256] Not doubting the power of Congress to carry out this principle everywhere within the jurisdiction of the United States, I content myself for the present by asserting it only in the lapsed States lately in rebellion, where the twofold duty to guaranty a republican government and to enforce the abolition of Slavery is beyond question. To that extent I now urge it.

Both these propositions are opposed as informal and inoperative, because without machinery or penalty. Such is the objection, if I understand it. As it has been made, I answer it. Each on its face is an Act of Congress prohibiting denial of certain rights on account of color. In this respect each is at least a Congressional interpretation of the Constitution, and it is by no means clear that it could not be enforced in the courts. The bill which has already passed the House of Representatives, striking out the word “white” in the electoral laws of the District of Columbia, is without machinery or penalty; but it is at least a Congressional declaration, to be followed, of course, by other legislation with proper machinery and penalty; and this is the precise character of the measures presented by the Senator from Illinois and myself. Objection, if valid at all, must be equally valid against the bill for enfranchisement in the District of Columbia, and against every other Congressional declaration without machinery or penalty. It is, at most, one of form, which I put aside and advance to the substance. The question is too vast and the times are too serious for a special demurrer. It must be tried on its merits. The question is on the power of Congress to establish equality of political rights, at least in the Rebel States. If Congress has this beneficent power, then exercise it in such form as shall seem best, with machinery and penalty or without machinery and penalty; but, in God’s name, exercise it, for the sake of the country, which suffers from your delay.

Has Congress power to secure equality of political rights, at least in the Rebel States? I do not at this time raise the question of its power throughout the United States, but in the Rebel States. If this question were less transcendent in its relations, or if it could be approached calmly and without prejudice, in the light of reason, I cannot doubt the judgment. But you must bring to its determination the same simple desire for truth, undisturbed by external influences, which would control a judicial tribunal; for, in the determination of your powers under the Constitution, you are a judicial tribunal. It will not be enough to deny the beneficent power, or to mock at those who find it in the Constitution. You must answer their arguments.

1. I need not dwell on what has been so often discussed and so much misunderstood; and yet I must remind you of the power of Congress over the Rebel States from the necessity of the case; because, after the overthrow of legitimate governments, whose members were sworn to support the Constitution of the United States, there was no other rule possible for these States than that of Congress,—precisely as the Territories, according to Chief Justice Marshall, in a famous judgment, fell under “the power and jurisdiction of the United States” from the necessity of the case.[257] I do not say that a State becomes a technical Territory, as that term is understood among us; but I do say, that, in the lapse of the Rebel States, and in the absence of legitimate governments with members sworn to support the Constitution, these States fell under “the power and jurisdiction of the United States,”—meaning, practically, Congress,—until such time as they are reorganized according to the requirement of the Constitution. In the exercise of such a power and jurisdiction thus cast upon it, Congress must see that all loyal citizens, without distinction of color, take part in the formation of the new governments.[258]

2. Nor need I dwell on another source of power, found in the rights of war; but this, too, must be made plain. Nobody doubts that the United States were justified in asserting supremacy in the Rebel States by force of arms. But the war, when once begun, was subject to all the conditions of war, according to the rights of war found in the Law of Nations,—doubly obligatory on us, first, because we belong to the family of nations, and, secondly, because the Law of Nations is expressly recognized by the Constitution itself. Now, according to the rights of war found in the Law of Nations, a conquering power is justified in requiring not only indemnity for the past, but security for the future. It depends upon the people of the United States, represented in Congress, to determine the guaranties of this security. In support of this conclusion, I ask attention to a familiar authority, whose statement seems to cover the case. I read from Vattel:—

“The whole right of the conqueror comes from that just self-defence which comprehends the maintenance and prosecution of his rights. When, therefore, he has entirely subdued a hostile nation, he may undoubtedly, in the first place, do himself justice with regard to that which gave rise to the war, and indemnify himself for the expenses and damages it has caused him; he may, according to the exigency of the case, impose penalties upon the conquered nation by way of example; he may even, if prudence require, render it incapable of doing harm so easily in future.”[259]

The offending party, when conquered, may be rendered incapable of doing harm so easily in future. This is according to natural justice. Then again the same familiar authority says:—

“If the inhabitants have been personally guilty of any criminal attempt against the conqueror, he may by way of punishment deprive them of their rights and franchises. This, again, he may do, if the inhabitants have taken up arms against him and thus directly rendered themselves his enemies. He then owes them nothing more than what is due from a humane and equitable conqueror to subjugated enemies.”[260]

Surely, out of this ample power Congress cannot hesitate in requiring justice to the wards and allies of the Republic through whom the Rebellion was crushed, especially when without justice to them security in the future is nothing but a mockery and a phantasmagoria.

3. From these sources of power I pass to that other found in the constitutional obligation to guaranty to every State of the Union a republican form of government. Here is the text:—

“The United States shall guaranty to every State in this Union a republican form of government.”

This obligation is peremptory, and not discretionary. It is shall, and not may. The United States must do it. Of course, in executing the guaranty, you must affix a meaning to the term “republican form of government.” To do this I have in this debate endeavored to show the essential principles our fathers had at heart when they founded the Republic. I shall not weary you again with the historic statement. It is enough, if I present the conclusion. According to the Fathers, all men are equal in rights, and, as corollaries from this truth, all just government is founded on the consent of the governed, and taxation without representation is tyranny. Such was their idea of a republican government.

It is idle to allege against this definition, that there were property “qualifications” in most of the States, by which the number of voters was essentially limited. This is true. But it must not be forgotten that a property “qualification,” unless unreasonably large, is not a disfranchisement. It is a condition, sometimes onerous, but not in its nature insurmountable, as the condition of color, and it is equally applicable to all. And yet it is apparent, from the recorded opinions of the Fathers, that even this “qualification” was regarded as inconsistent with the genius of republican institutions.

It is idle also to allege against this definition the toleration of Slavery. This was sad enough; but the Fathers who tolerated Slavery regarded it as absolutely exceptional. According to the definition of a slave, he has no will of his own, and can give no “consent” to government. Therefore he was not considered as belonging to the “body politic.” But not being represented, he was not taxed, except as property. Indeed, a careful examination of his relations to the government shows how completely in his case the rights of “the people” are left untouched. He was not regarded as one of “the people,” and therefore was not under the safeguard of the rights of “the people.” But all this was changed when he became a freeman. He was then one of “the people,” whose property could not be taken by taxation without representation, and whose consent was essential to government. The difference was not between whites and blacks, but between slaves and freemen. All freemen, without distinction of color, were citizens. Listen, if you please, to the “Federalist,” in an article attributed to each of the three eminent authors of that collection, and which the Senator from Maryland [Mr. Johnson] assumed was by Madison, but which is claimed for Hamilton, in the last edition of the “Federalist,” by his son. I quote a second time the important words:—

“It is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is denied to them in the computation of numbers; AND IT IS ADMITTED, THAT, IF THE LAWS WERE TO RESTORE THE RIGHTS WHICH HAVE BEEN TAKEN AWAY, THE NEGROES COULD NO LONGER BE REFUSED AN EQUAL SHARE OF REPRESENTATION WITH THE OTHER INHABITANTS.”[261]

Such is the exposition of the actual Constitution by Hamilton. According to him, “If the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.” But this very hour has sounded. The laws have restored the rights which had been taken away, and it is now your duty to see that the people who have regained their rights are no longer refused an equal share of representation. The opinion of Hamilton on this vital question is still further attested by his saying that the liberty for which our fathers fought was the right of “each individual” to “a share in the government”;[262] that “the electors are to be the great body of the people of the United States”;[263] and still further, by the proposition in his Plan of a Constitution:—

“Representatives shall be chosen, except in the first instance, by the free male citizens and inhabitants of the several States comprehended in the Union, all of whom, of the age of twenty-one years and upwards, shall be entitled to an equal vote.”[264]

In this proposition, which, though not adopted in terms, may be regarded as the pole-star of our fathers, the distinguished author followed the Continental Congress, which recommended the apportionment of the war expenses among the “free citizens and inhabitants,” without distinction of color.[265]

This rule is in entire conformity with that matured by ancient experience, especially in Greece, where, according to the universal master, Aristotle,—

“The whole body of the inhabitants of a country enjoying the protection of its laws, including the young who are still under the legal age, and the very old who have passed the time of action, and all others under any other species of disability, are in a certain wide and general sense citizens; but the full and complete definition of a citizen is confined to those who participate in the governing power.”[266]

Proving, as I have, that colored persons are citizens, this very definition teaches that they cannot be refused participation in the governing power.

The historian Thirlwall, in his studies of Greek polity, recognized this rule, when he wrote:—

“But a finished democracy, that which fully satisfied the Greek notion, was one in which every attribute of sovereignty might be shared, without respect to rank or property, by every freeman.”[267]

In recognizing the right of “every freeman” to the full enjoyment of the elective franchise, our fathers followed the early example.

Curiously enough, we find confirmation of the true principle, where you would little expect it, in that very Dred Scott decision which undertook to blast a race. Chief Justice Taney on that occasion laid down a rule which at this moment is applicable to every “citizen,” without distinction of color:—

“The words, ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the ‘sovereign people’; and every citizen is one of this people, and a constituent member of this sovereignty.”[268]

This is strong enough; but Mr. Justice Daniel is still more precise:—

“There is not, it is believed, to be found in the theories of writers on Government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political.”[269]

Thus does that terrible judgment, once a ban to the colored race, now testify to their indisputable rights as “citizens.”

Therefore I cannot hesitate to say, that, when the slaves of our country became “citizens,” they took their place in the “body politic” as a component part of the “people,” entitled to equal rights, and under protection of two guardian principles,—first, that all just government stands on the consent of the governed, and, secondly, that taxation without representation is tyranny; and these rights it is the duty of Congress to guaranty as essential to the idea of a republic. The aspiration of Abraham Lincoln, in his marvellous utterance at Gettysburg, was, that “government of the people, by the people, and for the people should not perish from the earth.” But who will venture to exclude from the “people” millions of citizens?

If governments in the Rebel States are brought to this criterion, they must fail. The departure from the true standard is not merely theoretical, as it might be regarded in States where the disfranchised are few in number, but there is an absolute failure to come within the conditions required. It is not decent to call a State republican, where more than a majority of its “people,” constituting the larger part of the “body politic,” is permanently disfranchised; nor is it decent to call a State republican, where any considerable portion of the “people,” constituting an essential part of the “body politic,” is permanently disfranchised. If in times past such a State could have been treated as republican, it will not do to treat it so now. It lacks the vital elements, and must be treated accordingly. I do not dwell on this point, for it seems absurd to call it in question.

Clearly it is your duty to enforce the guaranty. By your oaths to support the Constitution, you must take care that in all the States where governments have lapsed this guaranty shall be carried out. In performance of this duty you may proceed either by an enabling act, establishing in advance the conditions of restoration to “practical relation with the Union,” or by an act directly annulling all constitutions and laws inconsistent with a republican government. The power is in Congress. It has been recognized in formal terms by the Supreme Court; and you are the final judge of the “means” to be employed. To say that you have not the power is to abdicate at a great exigency and renounce the very means of salvation. It is to fling away your arms in the very face of the enemy. It is to spike the Constitution at a moment when its full cannonade is needed for the overthrow of wrong. Clearly the power is yours, and upon your heads will be the fearful responsibility, if you fail to exercise it.

4. From this power in the Constitution I pass to another, also in the Constitution, supplied by the second clause of the Constitutional Amendment. It is there provided that Congress shall “enforce” the abolition of Slavery by “appropriate legislation.” Here, according to all rules of interpretation and the judgments of the Supreme Court, Congress is empowered to do what in its discretion seems best to this end. It may adopt any “means” which seem “appropriate.” It may select any weapon in the arsenal. I do not stop to cite judgments of the Court, or to dwell on this power. The case is clear, and I challenge contradiction. As the grant is recent, it is not open to any suggestion of loss or waiver by desuetude or non-user. It is fresh as the abolition of Slavery itself, and at this moment is just as vital. You may as well deny the one as the other.

Here, even at the cost of repetition, allow me to remind you that already, during the present session, the Senate, in pursuance of this power, has undertaken to pass “a bill to protect all persons in the United States in their civil rights, and furnish the means of their vindication.” The declared object of the bill, in its very title, is the protection of all persons in the United States in their civil rights; and this object is carried out by the following provision:—

“There shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery.”

The bill proceeds to provide machinery and penalties for the enforcement of this prohibition. Mark, if you please, that this is not merely in the Rebel States, nor even in the States where Slavery was recently abolished, but everywhere throughout the United States. All this is done by virtue of that very clause of the Constitutional Amendment which I adduce. It is done by Congress, in the exercise of its discretion, in order to “enforce” the abolition of Slavery. It is the “means” which Congress adopts. It is the weapon which Congress selects from the arsenal. But surely, if Congress, in order to “enforce” the abolition of Slavery, can secure all persons throughout the United States in civil rights, it can, out of the same abundant power, secure all persons throughout the United States in political rights; and this is precisely what is proposed by the bill of the Senator from Illinois. My own proposition, as I now present it, aims for the present at securing political rights throughout the Rebel States; but the irresistible argument is the same in each case. Each is to “enforce” the abolition of Slavery.

I do not stop to exhibit the elective franchise as essential to the security of the freedman, without which he will be the prey of Slavery in some new form, and cannot rise to the stature of manhood. In opening this debate I presented the argument fully. Suffice it to say, that Emancipation will fail in beneficence, if you do not assure to the former slave all the rights of the citizen. Until you do this, your work will be only half done, and the freedman only half a man.

Such, Sir, are four sources of power,—each ample: first, the necessity of the case, as with Territories, where there is no other jurisdiction; secondly, the rights of war, under which all needful safeguards for the future may be required; thirdly, the duty to guaranty to every State in the Union a republican form of government; and, fourthly, the authority to “enforce” the abolition of Slavery by “appropriate legislation.” Out of each and all Congress may derive its power. It only remains that it should act as becomes the representatives of the American people.

Mr. President, as I am about to close, allow me to remind you once more, that, from the nature of the case and from the character of your obligations, the work of Emancipation must be completed by the National Government. It cannot be left to become the sport of sectional prejudice or wayward passion. It began with you, and it is for you to give it that final assurance to be found only in Enfranchisement. It is for you to “maintain” the former slave in the liberty he received at your hands. Such a duty cannot be renounced or delegated. It must be sacredly performed by the National Government, according to its original pledge in the Proclamation of Emancipation, and according to all the suggestions of reason. Humanity, too, joins in the cry. You cannot consent that the child Emancipation, born of your breath, shall be surrendered to the custody of enemies. Take it in your arms, I entreat you, and nurse it into strength. Be instructed by the examples of history, teaching that the masters of slaves cannot be trusted to legislate for them,—a conclusion announced by the best English statesmen, speaking from their experience, in words which I have often quoted. I refer to the concurring voice of Edmund Burke, George Canning, and Henry Brougham. Thus, by testimony as well as by reason, in harmony with the national pledge, we are admonished that the work must be done by the Nation.

Do not say that you have not the power, when the will only is needed. It is the part of a good judge to amplify his jurisdiction: Boni judicis est ampliare jurisdictionem. Such is an approved maxim of law, handed down from early days. Kindred in character are other maxims, which enjoin the duty of inclining always in favor of Liberty, to the extent of catching at anything, even a twine thread, by which to save it. But on this occasion the good Congress need not amplify its jurisdiction. Enough, if it enforces what plainly exists. It need not catch at any twine thread to save Liberty. The great cables of the Constitution, with mighty anchors, are at command.

Sir, the freedman must be protected, and not sacrificed. You can do it, but only in one way. Paper will not do it. Parchment will not do it. Compromise will not do it. Give him the strength which comes from the fulness of citizenship, and he will then be protected. Only principles can be followed. They are like Divine promises, which, when properly understood and applied, answer every case of difficulty or distress, and, as in the Pilgrim’s Progress, “will open any lock in Doubting Castle.” Have faith. Before the earnest man difficulties disappear. To the boatman who said it was impossible to brave the storm then raging, William Tell, inspired by patriotic purpose, replied, “I know not whether it be possible, but I know that it must be attempted,”—and the deliverer reached his destination. The same courage is needed now. The attempt at least must be made; and who can say that it will fail? On its side will be Providence, the prayers of good men, Nature in her manifold attributes, and the awakened judgment of the civilized world. The time has gone by, when the spirit of caste can continue to bear sway. See to it, Senators, that this spirit has no foothold in the Constitution of our country. To this duty I summon you now, by every obligation of statesmanship, for the sake of the Republic and for your own sakes. To the spirit of caste answer back in the spirit of that Christian truth which you have been taught. Recall the precious words of the early English writer, who, describing “the Good Sea-Captain,” tells us that he “counts the image of God nevertheless His image, cut in ebony, as if done in ivory.”[270] The good statesman must be like the good sea-captain. His ship is the State, which he keeps safe on its track. He, too, must see the image of God in all his fellow-men, and, in the discharge of his responsible duties, must set his face forever against any recognition of inequality in human rights. Other things you may do; but this you must not do.